ADVERTISEMENTS

U.S. vs. Lopez-Velasquez, No. 07-30241 (6-23-09). The defendant was charged with 1326. He had been deported in 1994 but had not been informed of 212(c) discretionary relief. If he had been so informed, the district court believed he would not have waived his appeal because he had strong equities, including a citizen wife, and two citizen children. The court granted his motion to dismiss the indictment. The 9th (Reinhardt joined by Pregerson and Storm) agreed and affirmed the dismissal. The government had conceded that 212(c) relief was available, but that the defendant at that time would not have met the 7-year residency requirement. The 9th reasoned that he arguably might have (he was two months shy possibly at filing but arguments could be made that he was in the country longer than 7 years).

U.S. vs. Sanchez, No. 07-50564 (6-23-09). Circuit conflict! Remember in the days post-Booker when appeals from pre-Booker sentencings still were percolating? The 9th in Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc) had allowed limited remands to the district court for the court to determine whether it would have imposed a different sentence if at the time of sentencing the guidelines had been advisory and not mandatory. The 9th had implied that the standard would be generous. In this case, the defendant had been sentenced for mail fraud and money laundering related to a charity. On an Ameline remand, he argued that the court should consider his post-sentencing rehabilitation. The court allowed evidence, but then said it would not have changed its sentence. The 9th (Thompson joined by Peterson and Fogey) held that the 9th follows the 2nd Circuit, and the 6th and 7th, and will not consider post-sentence rehab in a sentencing in an Ameline remand. The remand is to determine at the time of the first sentencing whether the court would have, under those factors, impose a different sentence. This is in conflict with the 3rd and 4th (!) Circuits that have a full sentencing with all factors considered.

Keesee vs. Power, No. )7-56153 (6-23-09). The 9th (Grabber joined by Noonan and O'Scannlain) consider whether a state court's decision that a petitioner's committing a crime while on probation is akin to an Almederaz-Torres prior conviction and can be decided by a judge for sentencing enhancement purposes. Under AEDPA , the 9th has to follow a state court's "reasonable" interpretation of law, even if the 9th would have disagreed with it. Such is the case here.

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